Return to August 2023 Dairy Dispatch
Updates from the 2023 legislative session:
Right to farm and landowner liability
By Kyle K. Weldon and Jim D. Bradbury
James D. Bradbury, PLLC
Texas, along with all other 49 states, has a “Right to Farm” statute, which provides important protections for existing agricultural operations against nuisance claims. As we have previously highlighted in our February article, this session the Texas Legislature, as over a dozen other states have done in recent years, made significant amendments to its Right to Farm statute. Here is a summary of the bills signed by Gov. Greg Abbott:
HB 2308 (Effective Sept. 1): This bill expands the definition of agricultural operations protected by the Right to Farm statute to include operations growing vegetation, forage for livestock or wildlife management, and those providing veterinary services.
In addition, HB 2308 adds certainty regarding the “established date of operation.” The prior version of the statute provided a substantial change to the operation (such as an expansion of the facilities) would move back the date of operation. Under the amended statute, the language allowing for the creation of a new date has been removed and there is now one fixed date – the date on which the agricultural operation commenced.
Another important change is raising the burden of proof required by a party bringing a nuisance claim against an ag operation. The statute now requires a party to prove each element of their cause of action by “clear and convincing evidence,” which is higher than the traditional evidentiary standard of proof (preponderance of the evidence).
The bill also clarifies that in any conflict between the Right to Farm statute and any other law, the Right to Farm statute will prevail.
HB 2947 (Effective immediately): This bill further expands the definition of agricultural operations protected by the Right to Farm statute to include operations engaged in the commercial sale of animals.
HB 1750 (Effective Sept. 1): This bill adds significant protections to agricultural operations located within the corporate boundaries of cities. Among other things, it limits the ability of cities to impose governmental requirements on an ag operation unless there is clear and convincing evidence that (1) the purpose of the requirement cannot be addressed through less restrictive means, and (2) the requirement is necessary to protect public health and safety. In addition, HB 1750 directs the Texas A&M AgriLife Extension Service to develop a manual that identifies “generally accepted agricultural practices and indicate which of those practices do not pose a threat to public health.”
HJR 126 (Pending voter approval): This is a joint resolution that seeks to amend the Texas Constitution to include that “people have the right to engage in generally accepted farm, ranch, timber production, horticulture, or wildlife management practices on real property they own or lease.” This constitutional amendment will be Proposition 1 on the Nov. 7 statewide ballot before Texas voters. The ballot language will read, “The constitutional amendment protecting the right to engage in farming, ranching, timber production, horticulture, and wildlife management.”
HB 73 (Effective Sept. 1): While not part of the Right to Farm amendments, it is also important to note the passage of HB 73. This bill amends Section 75.006 of the Texas Civil Practice and Remedies Code to add certain liability limitations in connection with livestock or agricultural land. In general, this bill provides that an owner, lessee or occupant of agricultural land is not liable for damage or injury to any person or property if the damage is caused by a (1) trespasser, (2) a third party who enters the property without the permission of the landowner or lessee, or (3) wildlife or an act of God. The prior version of this section was limited to peace officers and firefighters.
